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Pennsylvania Supreme Court Announces Challenge to Presumptively Vindictive Sentence Constitutes ‘Legality Challenge’ and Thus Cognizable Under PCRA

by Harold Hempstead

The Supreme Court of Pennsylvania held that a vindictive sentencing claim pursuant to North Carolina v. Pearce, 395 U.S. 711 (1969), meets the definition of a legality challenge that is cognizable under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

In 2007, Mark Prinkey was arrested and charged with “attempted involuntary deviate sexual intercourse (“IDSI”) with a child, attempted indecent assault with a person less than thirteen years of age, and corruption of the morals of a minor.”

The charges stemmed from Prinkey placing his hands upon his seven-year-old stepdaughter’s shoulders and asking her “if she ever kissed a boy.” She reported the incident to her mother, who reported it to the police. Upon questioning by police, Prinkey stated that he did not attempt to kiss the girl, even though he intended to and believed that if he had kissed her, “other sexual acts, such as fellatio, might have followed.”

Following his April 2008 jury conviction, he was sentenced to an aggregate sentence of ten to 25 years’ imprisonment and designated as a sexually violent predator.

In 2010, he filed his first PCRA petition, arguing that his counsel was “ineffective for failing to raise and preserve a challenge to the sufficiency of the evidence underlying the attempted IDSI conviction.” The PCRA court denied the petition, and he appealed to the Superior Court. It agreed with his argument that the Commonwealth failed to prove the IDSI offense, and in light of this failure, his “counsel was ineffective for waiving the challenge to the sufficiency of the evidence of direct appeal.” Consequently, the Superior Court vacated his IDSI conviction and sentence and remanded the remaining counts for resentencing.

On remand, for the first time, the Commonwealth notified Prinkey of its intent to seek mandatory minimum sentencing under 42 Pa.C.S. § 9718.2(c). He moved to dismiss.

At resentencing, the Commonwealth argued that its decision not to pursue the mandatory minimum sentence at the original sentencing has no bearing on its right to seek it now. The Commonwealth made it clear to the court that Prinkey is “a man who needs to be locked up for as long as he can be.” Over Prinkey’s objection, the court sentenced him to the mandatory minimum on the attempted indecent assault conviction, which was double his original aggregate sentence of ten to 25 years for attempted IDSI — a crime graded higher than attempted indecent assault. Prinkey filed a timely motion for post-sentence relief. The resentencing court denied the motion, and the Superior Court affirmed on appeal.

On May 16, 2016, Prinkey timely filed another PCRA petition, arguing that doubling his sentence amounted to retaliation for him successfully challenging his original judgment of sentence, which the U.S. Supreme Court deemed unconstitutional in Pearce. While Pearce instructs that there’s no absolute prohibition against receiving a greater sentence at resentencing after a successful appeal, Prinkey argued that imposing a mandatory sentence “after a partially successful appeal that dramatically increases his sentence is per se vindictive” and thus unconstitutional. 

The PCRA court denied relief, and the Superior Court affirmed. The Superior Court rejected his argument that the vindictive sentence claim “should be considered as a challenge to the legality of his sentence” and thus cognizable under the PCRA. It relied upon the en banc decision in Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007), which held that claims arguing that a sentence was imposed as retaliation for exercising the right to an appeal constitute a challenge to the discretionary aspects of a sentence, not a challenge to the sentence’s legality and thus not cognizable under the PCRA.

Prinkey appealed, and the Pennsylvania Supreme Court agreed to resolve the issue of whether Robinson should be “overturned so that Pennsylvania law will treat an appellate challenge to a sentence on the basis of a claim of vindictiveness as a challenge to the legality of the sentencing as opposed to the discretionary aspects of sentencing that cannot be raised under the … [PCRA].”

The Court stated that there are two broad types of sentencing challenges, viz., (1) implicating the discretionary aspects of the sentence and (2) legality of the sentence. Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016); see also Commonwealth v. Sprull, 80 A.3d 453 (Pa. 2013). It noted that it’s settled law that legality of a sentence challenges are covered by the PCRA. See Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999).

Under Barnes and its progeny, there are four broad categories of challenges that fall under Barnes’ definition of an illegal sentencing challenge. The Court explained that Prinkey’s challenge implicates the third category: “claims asserting a constitutional barrier to the exercise of sentencing authority conferred in a facially constitutional statute.”

The Court observed that Pearce recognized it would be “extremely difficult to prove in any individual case” the existence of a retaliatory motive for a harsher sentence after a successful appeal. The Pearce Court instructed that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” On the record, the judge must discuss “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Without such on the record explanation, a vindictive purpose is presumed, according to the Pearce Court.

However, the vindictive presumption doesn’t apply to every case in which an increased sentence is imposed following a successful appeal. Alabama v. Smith, 490 U.S. 794 (1989). Where it’s likely that the sentencing court obtained new facts about the defendant’s “moral character and suitability for rehabilitation” prior to resentencing, the vindictiveness presumption doesn’t apply. Pearce. The Smith Court instructed that the presumption applies only in “circumstances … in which there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.”

Turning to the present case, the Court stated that the Commonwealth “stripped the sentencing court of its traditional discretionary power over sentencing” by invoking the mandatory minimum sentence under § 9718.2(a)(1). It reasoned: “Assuming that the presumption of vindictiveness controls here, the Commonwealth lacked the authority to do so in the absence of the specific findings required by Pearce, and the trial court retained its traditional discretion.” See Barnes. Thus, the Court held that Prinkey’s “claim is a challenge to the legality of his sentence.”

Since a challenge to the legality of a sentence is cognizable under the PCRA, the Court further held “the Superior Court committed an error of law in concluding that Prinkey’s challenge to his sentence as presumptively vindictive was not within the PCRA’s ambit.” 

Accordingly, the Court reversed and remanded the case back to the Superior Court with instructions to consider the merits of Prinkey’s vindictivenessclaim. See: Commonwealth v. Prinkey, 277 A.3d 554 (Pa. 2022). 

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